THE COURT OF Appeal has overturned the High Court’s refusal to allow a teacher at a south Dublin private fee-paying school legally challenge how it dealt with a complaint alleging he called a male student a “little bitch”.
In 2016, the High Court ruled Pierce Dillon was not entitled to judicial review against Catholic University School (CUS) for reasons including a final written warning issued to the teacher had expired, there was no record of it on his personnel file and because scarce court time should not be allocated to trifling matters.
Dillon, who denies calling the student a little bitch, appealed that decision.
In its judgement today, the three-judge Court of Appeal, comprised of its President Justice George Birmingham, Justice Gerard Hogan and Justice Marie Whelan, allowed the teacher’s appeal and remitted the matter to the High Court for a fresh determination on the merits of Dillon’s arguments.
‘A little bitch’
Dillon had sought judicial review of the formal procedure adopted by CUS in dealing with a complaint by the boy’s parents over events on 8/9 May 2014.
The teenage student claimed, after he was late on 8 May 2014 for Dillon’s class due to talking to another teacher, Dillon told him he was continually disrupting the class, always moaning and was a “little bitch”.
The student also claimed, after telling Dillon the following day he could not attend class due to a school sports’ commitment, he was told he would be kicked out of class for three weeks. The boy alleged he told Dillon he was not allowed to call him a “little bitch” and Dillon had denied doing so.
Following the complaint a meeting was held on 27 March 2015 to discuss disciplinary action, leading to a final written warning being issued to Dillon in April 2015.
Dillon was told CUS was a Marist Catholic school known for the kindness and humanity with which it treated its pupils, that his behaviour had fallen short of the school’s expectations and a final warning would be active for 12 months after which, subject to his satisfactory performance, it would expire.
He claimed the handling of the complaint was unfair, breached his rights and the school’s own procedures, and caused him hurt and distress after 34 years service as a teacher. He also claimed it allowed no appeal. The school argued it had implemented the appropriate procedure and Dillon had been treated fairly.
High Court
In 2016, Justice Michael Twomey said the court was being asked to intervene and quash a final written warning to a teacher concerning one incident of inappropriate name calling.
The court should not intervene on grounds of pointlessness because, when the matter was first heard, the warning had expired, Judge Twomey had ruled initially. It had also been removed from his record within 12 months.
The judge said he was also refusing judicial review on the de minimis principle (a legal principle by which the court refuses to consider trifling matters) as the final warning was “just a warning” to be removed after 12 months and treated as it if had not existed. There was no imposition of any liability, he said.
He also refused judicial review based on the need to avoid unnecessary use of the scarce public resource of court time.
Appeal
Today, while giving the Appeal Court’s decision, Justice Birmingham said the High Court was wrong in law to dismiss the case on the grounds it was moot. The terms of the final warning given to Dillon had potentially significant implications for his good name and his employment prospects.
This was sufficient to justify the conclusion that the proceedings Dillon sought to advance were not moot or a small matter. While the court said it was not expressing any view on the merits of the arguments advanced it was allowing the appeal and sending the matter back to the High Court for a fresh determination.
In his concurring judgement, Justice Hogan said he was concerned about deeming a final warning as minor. In his view, such a warning should not happen lightly and cannot be regarded as a “trifle”.
Justice Birmingham said he was allowing the appeal despite his “strongly held view” that disciplinary actions in an industrial relations context, falling short of a dismissal, should rarely find their way to the courts.
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